From the moment Justice Souter announced his retirement, Sonia Sotomayor led the list of potential replacements. For a while, Diane Wood looked like the new favorite, but that was due as much to shady hit pieces against Sotomayor than to anything actually changing inside the White House. And at the end of the day, early conventional wisdom proved right: Barack Obama appointed Sotomayor to the Supreme Court.
The first Hispanic to be nominated to the Supreme Court, Sotomayor’s appointment could have important political consequences in solidifying the Democrats’ advantage among the Latino constituency - especially if conservatives go all-out in opposing her. But it is of course on the Supreme Court that this pick will matter most: Now only 54, Sotomayor will spend a long time on the bench - though a lot is already being written about her Type I diabetes.
Sotomayor will probably prove a reliable member of the court’s liberal bloc and she should prove at least as liberal as Souter. But many on the left were hoping for a bit more and they could be disappointed that Obama did not use the opportunity to appoint someone who could have proven to be an ideological counterweight to Antonin Scalia - a judge who pushes for broad changes to jurisprudence or who has a large enough vision to deploy an aggressive argumentative arsenal against Scalia and Thomas.
Such an arsenal might have lacked the votes to win decisions now, but it could have been used by liberal judges on lower courts and laid the groundwork for the left’s judiciary renaissance in the decades ahead. (This is what occurred with Justice Rehnquist, for instance.)
Instead, Sotomayor has a centrist profile, a minimalist vision of the judiciary and a clear preference for narrow and incremental rulings. She looks far closer ideologically to the man she will replace than to Justices like Marshall and Brennan. She is unlikely to alter the current situation by which the four liberal Justices are closer to the center than the four conservative Justices, an unbalance that skews the court to the right before we even add in Anthony Kennedy.
She is also more of a moderate than most of the other potential picks. Wood, the rumored runner-up, is also centrist but looks to be further to the left on issues like business law and the scope of executive power - not to say anything of people like Pam Karlan and Kathleen Sullivan.
“Known as a moderate on the court, Sotomayor often forges consensus and agreeing with her more conservative nominees far more frequently than she disagrees with them,” say the White House’s talking points, leaked to the press earlier today. And while many Republicans like Mitt Romney and Mike Huckabee are clamoring their opposition, a founder of the conservative group Judicial Watch is enthused enough to release a statement praising Obama’s choice.
Sure, Obama could get another pick. But who knows whether circumstances will ever be as favorable for him to get whomever he wants confirmed? More importantly, the president does not seem interested in appointing a clearly left-leaning judge and his centrist politics align him with someone like Sotomayor. This is not to say that Obama is not sensible to the argument that a counterweight to Scalia is needed to balance the Court but what Obama understands by “counterweight” has probably less to do with ideology than intellectual ferocity and argumentative brilliance.
And Sotomayor is undeniably very well equipped to become a legal superstar. Despite the month-long smear campaign that sought to portray her as somewhat of a dummy, someone who was born in a working-class family in the Bronx and worked her way through Yale Law School clearly has the intellectual gravitas needed to shape jurisprudence in lasting and meaningful ways.
All in all, Sotomayor has enough of a track-record that she seems unlikely to be the Democrats’ version of Souter and O’Connor. Some liberals are expressing concern that Sotomayor was first appointed to the federal bench by George H. W. Bush - but articles written back in 1992 made it clear that she was nominated as part of the compromise Republicans struck with Democrat Daniel Moynihan that allowed the New York Senator to recommend people to fill two of the nine district court vacancies.
Another point of discussion concerns Sotomayor’s years as a prosecutor and how that might impact her work on the court. An article published in The New York Times in 1983 makes for a fascinating read:
Sonia Sotomayor, now in her fifth year as an A.D.A., tried to examine her own motives in making the decision to join the office of the prosecutor… “There was a tremendous amount of pressure from my community, from the third-world community, at Yale,” she recalls. “They could not understand why I was taking this job. I’m not sure I’ve ever resolved that problem.
Some of Miss Sotomayor’s initial misgivings about working as a prosecutor were resolved when she moved from misdemeanors to more serious crimes. “I had more problems during my first year in the office with the low-grade crimes — the shoplifting, the prostitution, the minor assault cases,” she says. “In large measure, in those cases you were dealing with socioeconomic crimes, crimes that could be the product of the environment and of poverty.
“Once I started doing felonies, it became less hard. No matter how liberal I am, I’m still outraged by crimes of violence. Regardless of whether I can sympathize with the causes that lead these individuals to do these crimes, the effects are outrageous.”
“What I am finding, both statistically and emotionally,” she continues, “is that the worst victims of crimes are not general society — i.e., white folks —- but minorities themselves. The violence, the sorrow are perpetrated by minorities on minorities.”
Miss Sotomayor, an imposing woman of 29 who smokes cigarettes incessantly, speaks deliberately of how she has coped with the job. “The one thing I have found,” she says, “is that if you come into the criminal-justice system on a prosecutorial or defense level thinking that you can change the ills of society, you’re going to be sorely disappointed. This is not where those kinds of changes have to be made.”
With the caveat that Sotomayor has probably changed a lot over the course of 26 years, this article confirmed that Sotomayor is liberal (someone whose instincts are not at the left would not feel the need to justify being a prosecutor), that she believes in a minimalist vision of judicial restraint and that the left should not expect more (or less) from her than it got from Souter.
A look at some of her important appeals court decisions gets me to similar conclusions.
One case in particular seems symptomatic of Sotomayor’s reluctance to issue broad decisions and of the limits of scrutinizing her record. In January, she joined a ruling which upheld a New York law prohibiting chukka sticks on the basis that the Second Amendment does not apply to the states. The majority opined that this was a matter of settled Supreme Court precedent but recognized that last year’s Heller vs. DC decision might suggest otherwise; but, the court wrote, “the Supreme Court [should be left] the prerogative of overruling its own decisions.”
Once on the Supreme Court, she will no longer be bound by such considerations and she will be in a position to overturn past decisions. Her strict reliance on Supreme Court precedent while on the appeals court makes it very difficult to predict how she might negotiate that transition.
Interestingly, this chukka stick ruling is the one second amendment case she has dealt with. She has no track record on issues relating to the scope of executive power and gay rights and the thinnest of records on matters relating to abortion and the second amendment - all issues that she is likely to deal with once on the Court. Let’s look at some of these and other topics in more detail.
Civil rights: The case that is likely to attract the most attention in coming weeks is Ricci vs. DeStefano, a case brought about by a white and Hispanic firefighters when New Haven’s fire department did not give out any promotions after black applicants performed disproportionately poorly on a test. Sotomayor was part of a 3-judge panel that issued a short and unsigned ruling affirming a lower court’s decision that the city’s promotion policies were not discriminatory. The case is currently being decided by the Supreme Court, which is expected to reverse Sotomayor’s ruling in the coming weeks.
What could prove controversial in the coming weeks is not necessarily the substance of Sotomayor’s decision as much as the fact that the panel on which she sat did not issue any opinion to complement that of the district court. If Sotomayor was concerned with protecting the Civil Rights Act’s Title VII, why would she not issue a decision defending her ruling in favor of New Haven and thus making it more difficult for the Supreme Court to rule in favor of Ricci?
The ScotusBlog’s Judge Sotomayor’s Appellate Opinions in Civil Cases has far more detailed analyses of Sotomayor’s appeal court decisions on civil rights and work discrimination cases. While Sotomayor has rejected such claims on a number of important decisions, she has often found evidence of discrimination. In The National Journal, Stuart Taylor criticizes her for being “representative of the Democratic Party’s powerful identity-politics wing.”
Abortion: Her only decision was one that drew praise from conservatives because she upheld the “Mexico City policy,” allowing the federal government to ban funding for foreign groups who support abortion procedures. Because she has written no other decision relating to abortion law, she should expect questions on her beliefs about the constitutionality of the right to privacy and her thoughts on state decisis. After all, anti-Roe forces already have 4 votes on the court; Sotomayor might be unlikely to provide a 5th vote but Senators from both parties are likely to press her for hints.
Business: Sotomayor’s record looks to be centrist - just as that of the other liberal Justices. Business Weekly published an article this morning highlighting the fact that her prior decisions do not find her consistently siding with employees or employers, consistently approving federal preemption defenses or rejecting them. One decision that will likely be cited in the weeks ahead is her decision in favor of homeless people paid $1 dollar an hour for menial labor.
Election law: Ballot Access News takes a look at Sotomayor’s opinions on election law, noting that she ruled to make ballot access easier and to ease write-in rules. Perhaps most importantly, she filed a dissent in Hayden vs. Pataki, a case that addressed whether the Voting Right Acts protects minorities when it comes to felon disenfranchisement. Not only did Sotomayor join the main dissent, but she filed a dissenting opinion of her own.
I will write another post later on the politics of the Sotomayor pick, starting with why it’s hard to envision a tough confirmation battle.
